A Less Perfect Union: Gay Marriage and the Subversion of the Republic

Posted on Oct 24, 2008

By Scott Tucker

On May 15 the California Supreme Court ruled, in a 4-to-3 decision, that legal marriage in this state should no longer be reserved for heterosexuals. Six of the seven judges on that court were appointed by Republican governors, with the lone Democrat voting with the majority in this case. According to an estimate by the Williams Institute at the UCLA School of Law, more than 10,000 gay and lesbian couples have married since the first legal same-sex marriages on June 16.

In response, opponents lost no time placing Proposition 8 on the Nov. 4 ballot. Proposition 8, if passed, would change the state constitution so that marriage would be legally defined as being between a man and a woman, and thus would eliminate the existing right of same-sex couples to marry. This does not mean that the marriages of same-sex couples already legally enacted will be automatically null and void if Proposition 8 passes. On the contrary, these marriages are now legal facts on the ground, which will figure in class-action lawsuits and future court cases as the nationwide legislative battle over same-sex marriages and civil unions unfolds.

Current polls suggest a very close call on this issue in the Nov. 4 voting. The Mormon Church is pumping millions of dollars into television ads supporting Proposition 8. According to The Wall Street Journal, “Between 30% to 40 % of the $25.5 million in donations raised as of last week by the ‘Yes’ campaign has come from the Utah-based Church of Jesus Christ of Latter Day Saints.”

The coalition supporting the Yes on 8 campaign goes beyond the Mormon Church, of course. Conservative Catholics, including the Knights of Columbus, have donated more than $1 million. Focus on the Family (an evangelical group headed by James Dobson), an Orthodox Jewish group based in New York City, the National Organization for Marriage, the American Family Foundation, and various Baptist, Sikh and Muslim groups, as well as many Republicans, all have contributed heavily as well. A leading African-American cleric, Apostle Frederick K.C. Price of the Crenshaw Christian Center in Los Angeles, was joined on Oct. 20 by 50 African-American and Latino clerics in supporting Proposition 8. The press release of this last group noted these organizational ties and funding sources: “Paid for by ProtectMarriage.com—Yes on 8, a project of California Renewal. Major funding by Knights of Columbus, National Organization for Marriage California Committee and Focus on the Family.”

For more than 30 years, right-wing conservatives have rallied a base of supporters made up heavily of white evangelicals and have waged many winning campaigns by using the ready ammunition of so-called wedge issues. Since the 1970s, the religious right has made moral crusades against abortion, homosexuality and pornography into political litmus tests for Republican candidates. They have also made direct appeals to cultural conservatives across party lines, including evangelical Christians of all races. So the power of moral conviction on the far right had a real crossover effect on the Democratic Party.

In this fight, gay people have notable allies, including some wealthy people in business and entertainment. But no movement for social justice can build a strong foundation upon such a thin upper crust. That’s why the solidarity of some labor unions has been so welcome. The California Teachers Union Issues PAC has contributed $2 million, and the Service Employees International Union donated $500,000. The California Nurses Association is strongly opposed to Proposition 8. David Sanchez, president of the California Teachers Association, has stated, “For us, it’s a civil rights issue.” Since the right wing is running TV ads claiming that the rights of schoolchildren and parents would be violated by Proposition 8, the voices and faces of parents, students and teachers who oppose this proposition might have been featured effectively in TV and community newspaper ads as well. This would have required greater communication between organized labor and parent and student groups, and the staffs of No on 8 and Equality California.

There is a much larger and starker problem with the Democratic Party. If Proposition 8 wins, the political illusions of many gay people must be part of the public accounting. Likewise, elected Democrats gone AWOL will deserve consequences at the polls. Career Democrats with extraordinary wealth have made some donations to groups opposing Proposition 8, but they have been stingy in spending real political capital for this cause.

Sens. Barack Obama and Joe Biden rarely mention gay people except when speaking directly to small audiences of gay and gay-friendly donors. The issue of gay marriage is one they prefer to avoid. All the more reason we might expect the top elected Democrats of California to take up this fight in earnest. But in fact, the career Democrats, with the important exception of San Francisco Mayor Gavin Newsom, have dealt with Proposition 8 only in smaller and safer side conversations, and not in strong public messages. This is true both in California and in Congress.

The No on 8 coalition includes many reliable liberal groups and individuals, but as of Oct. 24, no television ad featuring the leading Democrats of California has brought the No on 8 message to the general public. No political courage was required for U.S. Sen. Dianne Feinstein to tell a gay magazine, “I believe we should uphold the ability of our friends, neighbors, and coworkers who are gay and lesbian to enter into the contract of marriage.” This message would have more reach and power if Feinstein dared to use the megaphone of the mass media. U.S. Sen. Barbara Boxer has not campaigned aggressively against Proposition 8 either, and has also not yet appeared in any television ad.

Likewise, the political capital that Rep. Nancy Pelosi has spent on this issue is spare change, but many Democrats will give her a “pragmatic” pass precisely because she is speaker of the House. A perverse logic operates in this case. If Pelosi refuses to wield congressional power in a fair fight against imperial adventures and war budgets; if she rules impeachment out of order and sidelines Rep. Dennis Kucinich and other dissenters in her own party; if she goes along to get along with the corporate oligarchy … then why should anyone expect her to risk a political bruise in defense of gay marriage?

I tried to discover whether the No On 8 forces had tried to enlist Sens. Boxer and Feinstein or Speaker Pelosi to appear in TV ads, as state Superintendent of Public Instruction Jack O’Connell has done. Speaking to a number of officials and spokespersons for No On 8 and Equality California, I encountered evasions and obfuscation but no straight answers. I can only conclude that the anti-Prop. 8 forces are willing to provide cover for the reluctance of California’s Democratic leaders to be publicly identified with an issue that might not play well with segments of the party base.

Clintonian triangulation is still the order of the day among many career Democrats, pundits and operatives. The moral and political horizon of Alex Koppelman should be evident in his “War Room” column, written for Salon on May 15, the same day the text the California Supreme Court ruling was published:

“First, the decision will undoubtedly be used by the Republican Party to reenergize its base. Second, it puts the Democratic Party in an uncomfortable position. The party has largely tried to split the baby by opposing outright legalization of gay marriage, which is still very dangerous politically, and supporting civil unions as an equitable solution. But this decision says civil unions are not the same thing as marriage and shouldn’t be treated that way. It’ll be very interesting to see what the reaction is from the party and the presidential candidates.”

If civil unions were indeed the legal gold standard of a social democratic country, then marriages likewise would be a purely individual and religious choice. We do not yet live in such a country, and we never will until we wage open electoral campaigns against the corporate parties and until we truly separate church and state. For now, Koppelman and his political colleagues are posing as Solomonic sages. Unlike the biblical Solomon, their plain imperative is to “split the baby” whenever possible.

On the Republican side, California Gov. Arnold Schwarzenegger, speaking April 11 at the Log Cabin Republicans National Convention in San Diego, said the effort by anti-gay forces to amend the California Constitution to re-ban same-sex marriage was “a total waste of time” and that he would fight against it. As reported by journalist Rex Wockner, Schwarzenegger told the gay Republicans: “Well, first of all, I think that it would never happen in California because I think that California people are much further along with that issue. And, No. 2, I will always be there to fight against that, because it would never happen. I think we need a constitutional amendment so that foreign-born citizens can run for president, but not about gay marriage. That’s a total waste of time.”

However, unlike the action of Gov. Ronald Reagan, who spoke out against the infamous 1978 Briggs Amendment, which would have barred gays from teaching in California, Schwarzenegger’s fight against Proposition 8 has not been visible to the public since his meeting with the Log Cabin Republicans.

The text of the state Supreme Court’s ruling is worth study, especially since justices who may fairly be called libertarian conservatives did their jobs. They paid scrupulous attention to legal precedents in the constitutional law of California. They also acknowledged that there are times when judges must not make false idols of previous laws, and must make decisions to advance justice long denied. A deep injustice will finally prove indefensible, and the fact that the law sided for so long with injustice then becomes part of the legal record.

The justices made pointed reference to “this court’s landmark decision sixty years ago in Perez v. Sharp (1948) … which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state. …”

Perez v. Sharp, the justices noted, “makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized.”

In other words, Perez v. Sharp was a prophetic ruling at that time precisely because it was not simply the product of the history of legal precedents—including racist laws against interracial marriage. But once a prophetic law sets a legal precedent, in direct contradiction and contravention of previous laws, then “the majesty of the law” is established anew upon the foundation of real and evolving social relations.

God, guns and gays. Wedge issues. Culture wars. Those phrases are well-worn currency, but their value has gone bust. Those magic formulas now stop thought and ward off reality, especially when found on Op-Ed pages and in the “progressive” lexicon.

We can dismiss any issue outside our own political platform as a wedge issue, but that hardly comes to grips with the hopes and fears of fellow citizens. Wedge issues, so called, have proved to be lasting foundation stones of real social movements. Those right-wing movements have a parallel existence with the Republican Party, much as the social movements of blacks, women and gays have had a parallel existence with the Democratic Party. No one should be surprised if career politicians are loyal first and foremost to their own careers, but politicians often have been forced to acknowledge the power of movements they did little or nothing to create.

We might wish all those wedges away, but we would do better to match our political will against the right-wing coalition of religious and free-market fundamentalists. That coalition has cracks and fissures we must study and widen. If the Democratic Party is the party of enlightenment, then Democrats should lean on their chosen leaders to talk more often and consistently about the working class, and not just the all too generic middle class. But the party of enlightenment can never be limited to any single political party whatsoever, either during economic crises and class struggles or during struggles for sexual, cultural and civil liberties. The brute fact remains that many Democratic politicians are unwilling to wage a fair fight for secular values in the public sphere.

At the Democratic convention, Barack Obama finessed the issue of same-sex marriage by saying all people of good will could disagree about gay marriage and still be opposed to discrimination against gay people. What does this mean in reality? Obama has said he is comfortable allowing each state to decide for itself on the issue of gay marriage. He has also said that he, personally, favors traditional marriage. Politically, his personal views are of interest only to the degree he translates those views into public policy. In fact, putting his “personal” views into the political arena is a political action.

There really is a crisis in both personal and political values, as reflected in genuine concerns about gays, guns and God. For many long decades, certain “pragmatists” have advised waiting for all reactionaries to age and die, until a young and beautiful generation greets the golden dawn. The political result of this advice has been decades of concession to corporatism and fundamentalism. We would do well to step up to facts on the ground, including the existential concerns of fellow workers and neighbors. Reducing all politics to a mechanical kind of economism was one way the traditional left in Germany (both Social Democrats and Communists) simply abandoned the terrain of cultural struggle to the Nazis.

Nazis and industrial death camps are not, in fact, the looming threats in this country. However, a corporate command economy (including multibillion-dollar bailouts that strengthen the fist of the corporate state) does have serious links with historical fascism. The corporate state is the essential engine of fascism, and imperial adventures predictably follow.

The corporate state is rarely satisfied for long with mere secure borders, but always seeks abroad for monsters to destroy. When the hammer of the state is aimed at “resident aliens,” who will be surprised if immigrants, labor militants and dissenters of all sexual and political kinds get hammered? Splitting the baby was not the aim of Solomon, but it has become the general rule for bipartisan “pragmatists” eager to do business across the aisle. This means splitting the body politic along lines that facilitate corporate rule, and there are times when rank religious fundamentalism serves that cause. That is why sexual and religious reaction is not a side issue in any consistent fight against the corporate state.

It is politically provincial to rule the better anarchist, socialist and feminist critiques of marriage out of order. Why indeed should marriage be the big brass ring, the only reason to ride the carousel? In a genuine social democracy, we can fully expect that more couples would be unmarried without suffering economic penalties or social discrimination. But here and now we are facing a storm of right-wing religious reaction in California. We have this much in our favor: Marriages for same-sex couples are now among the facts on the ground. So the burden of argument lies with the right wing to prove the state constitution must be amended and that all such marriages should become null and void. This is the case we should present starkly to the general public.

As Hannah Arendt once noted, “The right to marry whoever one wishes is an elementary human right. …” She had fled Nazi Germany and thus had direct experience of totalitarian racial laws which forbade marriage between Jews and “Aryans.” The context for her argument was a debate within the American left during the 1950s over Jim Crow laws which forbade whites to marry blacks. There were some people on the American left who were reluctant to cross the minefield of “miscegenation,” and they gave the most grotesque “pragmatic” reason for their position. Essentially, they claimed that a direct economic struggle must leave the deeper prejudices of the general public in peace. Arendt knew that the mingling of peoples is a perennial fact of life, and is indeed one of the essential kinds of human freedom. This kind of common sense was raised in her case to a very high political level, and we may rightly call her a radical republican.

“Even political rights, like the right to vote,” Arendt wrote, “and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty, and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.”

Are the leaders of the Democratic Party defending the right to home and marriage? Anyone who thinks this question is outrageous has not yet been outraged by the daily news. Obama and Biden are making the case for states’ rights in regard to gay marriage. Are all of the historical ironies lost on “progressive” Democrats? Have they forgotten the years in which racists made the states’ rights argument for slavery, and indeed for “anti-miscegenation” laws restricting choice of marriage partners and kinship? Their historical ignorance cannot really be ignorance. No, it can only be outright evasion and denial of actual social struggles. In practice, this means actual political regression throughout the ranks of career politicians and party apparatchiks.

Any Democrat who makes the “pragmatic” argument that politicians such as Obama cannot possibly challenge the prejudices of the public is already doing the dirty work of the far right and of sexual authoritarians. We might learn a lesson from European social democrats. In Spain, Prime Minister Jose Luis Rodriguez Zapatero publicly made civil unions and gay marriage one of the decisive political lines of battle against clerical reactionaries and against neo-Francoist nationalists. Zapatero made a strong case for solidarity among citizens of a secular republic, and indeed he has argued for the solidarity of human rights beyond all national borders. Yes, Zapatero is a Socialist. “Pragmatic” Democratic Party hacks assume this is one more reason a career politician in the United States cannot possibly make the case for social democracy. Social democrats, on the contrary, argue openly for a class-conscious movement which will challenge corporations and the entire political class of corporate career politicians.

After the California Supreme Court decision was announced in May, well-meaning people asked whether I would be marrying Larry Gross, my friend, lover and comrade of 33 years. We already considered ourselves married, and this marriage existed long before we tied the legal knot in a civil ceremony on Cesar Chavez Boulevard in Los Angeles. Our real marriage belongs in the old-fashioned antinomian tradition. No bloody thanks to career politicians, to churches or synagogues, or to the corporate state. We consider legal marriage as an important but limited advance in a landscape still strewn with land mines. Certainly the far right will retrench in another part of the field.

Look, we’re glad some justices on the bench still have some sense of justice. But let’s not lose our heads while walking up the aisle and collecting enough crystal and cutlery to go into the catering business. We chose legal marriage with the aim of securing benefits which are by no means entirely secured by civil unions alone. Whether we like it or not, marriage in this country has not yet been disentangled from religious presumptions and from petty dictators. We feel genuine uncertainty and anxiety about democracy in this country, and we cannot rely upon many “progressives” and career politicians in the fight for civil equality. To count upon leading corporate Democrats in the fight for democratic socialism would be delusional. Under these circumstances, we cut a deal with the state, but we will never disavow solidarity with single people, with non-monogamous people and with communal households.

The outright refusal of marriage is a principled position that commands respect. Especially since we do not live in a society which bears any resemblance to a social democracy. But only a dogmatist would claim that such refusals are the only way to gain traction and resistance against the Straight State, or against a society Christopher Isherwood once called “the heterosexual dictatorship.” That dictatorship has been eroded and undermined over recent decades, but we cannot predict the trajectory of social change or social reaction.

Social democrats inside and outside the Green, Socialist and Democratic parties are engaged in a war of position across a broad front of struggles. No one is claiming that same-sex marriage is the path to utopia, only that this struggle is essential to the preservation of a secular republic.

Some “progressives” endorse the notion that civil unions should be a separate but equal institution for lesbians and gay men. That may sound fair at first, but consider: If civil unions are to be the gold standard in a secular republic, why not advance the campaign for civil unions by encouraging straight folks to lead by example?

Again, consider: Why not begin a widespread boycott of marriage among those who are presently the overwhelming majority of members within that club—namely, heterosexuals? To ask such questions is to answer them—because the overwhelming majority is not brave. Neither among heterosexuals nor among homosexuals. If civic courage and dissent were already the daily norm, then indeed we might be on the verge of a social revolution. Or at least a general strike. Instead, we choose our battles, but not often on the social terrain we would like to choose.

What is the moral and political difference between marriage as a human right and marriage as just another capitalist country club? Marriage has a social history and indeed human possibilities that long predate the modern state. There are secular libertarians who are willing to reinvent marriage as one more corporate contract, and some of them do indeed serve as judges in the public courts. This does not mean we, the people, must accept the bad bargain of capitalist social relations without friction or struggle.

The far right worries that same-sex couples will pollute and damage the sacred institution of marriage. Indeed, equal justice also means that marriages are valid without the sacred canopy of any faith or religion. We are already living witnesses of the simultaneous breakdown and revision of social and legal contracts which include marriage, but which also go well beyond marriage.

If marriage offers only the protection of a corporate contract, then we are all well advised: Buyer beware! Then the marital contract has all the romance of the health insurance racket, which functions by ensuring the health of the insurance industry, and which offers condolences to patients who did not decipher the fine print. But people who choose legal marriages are not mere products on an industrial assembly line. We, the people, are not of one mind. This pluralism of ideas and desires is the homeland of democracy.

A secular republic must guarantee the freedom of all persons to love and marry whomever we wish. A republic respecting human rights and civil liberties must therefore be founded upon limited government and a division of public power. In the realm of love and of kinship, each of us must defend the most perfect freedom of association. One of the earliest flags of resistance against the British empire was a banner bearing the image of a coiled snake ready to strike and the motto “Don’t Tread On Me.” That’s the spirit, if only we dared.

Hundreds of years ago, members of the Society of Friends (also known as Quakers) defied the power of priests, ministers and judges by declaring their marriages of their own free will in their own public meetings. This tradition became so well established in Quaker strongholds such as Pennsylvania that this small sect did much to advance so-called common law marriage. In this spirit—and in open defiance of unjust courts and of savage politicians—we, the people (of all sexual persuasions), have every human right to declare ourselves married, with or without the blessing of any priest or politician. What we then demand from a law clerk or justice of the peace is indeed contractual. As contractual relations between corporations and workers are often antagonistic, likewise the marriage contract will bear the social imprint of a class-divided culture. If you hope a walk up the aisle is an exit from capitalist reality, you may be ready for a honeymoon but not for a life in the United States of America.

When Barack Obama addressed the nation in a speech titled “A More Perfect Union,” he raised hopes that we might soon enter the long promised land of racial reconciliation and social justice. Obama’s speech was lofty and general enough to become an instant classic of American transcendentalism. But the speech was also specific enough to include his personal story of being the child of a Kansan mother and a Kenyan father. In his own way, Obama underscored the same evolution of constitutional law that the justices of the California Supreme Court acknowledged in their recent ruling on same-sex unions.

Obama stated that “words on parchment would not be enough to deliver slaves from bondage, or to extend equal citizenship to all men and women of every creed and color. What was needed was a struggle over many generations. …” The republic was safeguarded over time “on the streets and in the courts, through a civil war and civil disobedience.”

He told this country “we may have different stories, but we hold common hopes … out of many, we are truly one.”

It is no finicky point to argue that our unity is a menace to democracy if we do not defend substantive plurality in sexual life and in political beliefs. So the old resounding refrains are not necessarily wrong, but social democrats must insist that the corporate state is not yet a democratic republic of all workers and citizens. The democratic left, generously defined, has maintained a historical consensus in favor of secular principles in public life, and social democracy in essential goods and services.

An injury to one is an injury to all. That has been one of the hallowed calls for solidarity in the labor union movement. In principle, that is also the ethical foundation of any genuine social democracy.

A secular republic that lacks fair provision of housing, education and health care for all citizens is a distinct possibility, so we cannot assume that the values of secularism are necessarily the values of economic and social justice. We must also grant the possibility that a state regime based upon religious fundamentalism might provide certain elements of social welfare.

What happens when a republic founded on secular principles is also founded upon brutal ethnic nationalism? The example of Turkey might come to mind, or indeed the example of the United States of America. In both countries, the official secular principles of government now coexist with powerful fundamentalist and theocratic movements.

The regressive crusades of the far right often advance over political territory deliberately abandoned by too many self-proclaimed “pragmatists” and “progressives.” Proposition 8 is a theocratic and anti-democratic effort to overrule freedom of kinship. In the view of the far right, it is not enough to regard the homes and personal bonds of same-sex couples as a less perfect union. That, after all, is a matter of personal prejudice and of personal faith. The Bill of Rights protects the freedom to hold and proclaim such beliefs. But the vicious and regressive program of the far right is not simply personal and metaphysical. No, this program is expansive and political. This is the reason we must fight the good fight against a political movement that aims to make this republic not only a less perfect union, but also aims to force a political marriage of market fundamentalism and clerical reaction upon the United States.

Here is a good example of the public morality of Concerned Women for America, which issued this message in a press release on the same day that the California Supreme Court published extending the realm of legal marriage:

“If people who engage in homosexual behavior want to dress up and play house, that’s their prerogative, but we shouldn’t destroy the institutions of legitimate marriage and family in order to facilitate a counterfeit.”

No one can predict how these national stories will unfold over the 21st century. We can only be sure the dimming 20th century is still throwing long shadows over the present political landscape. In the United States, many leading Democrats cannot be counted upon to fight fair and square for secular values in public life. Career politicians have made many fateful “pragmatic” concessions to the corporate and religious right. The consequences in personal life are often painful, and in public life the consequences are often truly disastrous.

Scott Tucker, a writer, democratic socialist and Los Angeles resident, was a founding member of ACT UP Philadelphia and of Prevention Point Philadelphia, a harm-reduction and syringe exchange program. He is the author of the 1997 book “The Queer Question: Essays on Desire and Democracy.”

AP photo / Tony Avelar

Newlyweds: Michael Allen, left, and Billy Iwing kiss after getting married in an after-hours ceremony at San Francisco City Hall on Oct. 21.